Monday, June 06, 2016

RETRO WATN: The Constitution

Originally, I intended this to be the start of a long series on the Constitution, covering all the amendments and sections of the document in greater detail. I did in fact get through two of the amendments, but then gave up on the effort because it was becoming increasingly clear that it would be like writing about the Magna Carta: an interesting, but old and now ignored document with no bearing on modern reality.  

Still, this is the first of the major weekend essays I wrote, which I kept doing for five or so years: one big post on the weekend and then little stuff over the course of the week.  In time I began taking both Saturday and Sunday off, writing bigger pieces as they came to me rather than holding them for the weekend.
The United States Constitution is one of the finest documents human beings have been able to develop and write in all of history. Simple, elegant, powerful, and wise, it is the foundation of liberty and democracy in the western world and the template for new countries writing their own constitutions for over 200 years. But in the United States, it is barely known any better than in any other country and it is not a requirement in any public school to have even looked at the document, let alone be conversant with it.

Original 13 StatesHISTORY
The United States were originally guided by and governed by the Articles of Confederation, which since 1781 provided for single congress to deal with matters of largely independent states - so independent they printed their own, largely worthless, money. A group of representatives from the states planned to meet in Annapolis to revise the Articles, but while some states didn't bother sending anyone, many weren't able to actually make it to the meeting in time. The delegates that met came to the conclusion that an entirely new document was needed, and a meeting of representatives from all the states would have to take part.

The primary writer of the Constitution was James Madison, the fourth president of the United States and considered the most intelligent and intellectual of the founding fathers, who were no simpletons. Starting in May of 1787, representatives of each of the 13 states except Rhode Island (the last delegate finally getting to Pennsylvania in August of that year) met at the Philadelphia Convention and voted to keep the deliberations secret and that 9 of the 13 states were required to pass the document.
However, in time, the congress voted for the constitution to be released and decided on by the states, and finally in 1787 the document was ready. Although Benjamin Franklin admitted there still were some problems with the Constitution, he admitted that it would never be perfect, and encouraged everyone to ratify the document.

The men who worked on constitution published materials in the press to help people understand what the document was about, what was meant by the different parts of it, to argue for and against it's ratification, and to explain the ideas and concepts were that behind the Constitution. Books of some of these writings are available in the form of the Federalist Papers and the Anti-Federalist Papers.

The Federalist Papers were a series of articles written under the pen name of Publius (in honor of Roman Senator Publius Valerius Publicola) by Alexander Hamilton, James Madison, and John Jay. They are considered the a primary source for interpretation of the Constitution. James Hamilton in particular argued that what would eventually become the Bill of Rights was unnecessary and redundant in paper #84 (by Alexander Hamilton).

The Anti-Federalist Papers argued that it was necessary for some manner of explicit protection of individual rights be added to the constitution or the citizens were not sufficiently protected from federal power. The writers of the Anti-Federalist papers argued that the constitution was not ready for ratification as it was written, and the writers were again anonymous, and to this day are not precisely known.

By May of 1790, all 13 colonies finally voted to ratify the constitution, with Rhode Island being the last and North Carolina reversing their original opposing vote in November 1788. Several of the states voted with a recommendation of what would become the Bill of Rights as outlined in the Anti-Federalist papers be added, and the first amendments to the United States Constitution became law on December 15, 1791.

These amendments were primarily written by the forgotten founding father, Virginia Delegate George Mason, who is considered the father of the Bill of Rights, and they reflected the perceived need to protect the states from too much federal power and the people from government of any kind. Since that time 17 amendments have been added, the last as recently as 1992.

The United States Constitution was primarily written by men who were heavily influenced by such writers and thinkers as John Locke, Charles Louis deSecondat baron of Montesquieu, Fran├žois-Marie Arouet (who wrote under the pen name Voltaire), and Jean-Jacques Rousseau. Although many of the Founding Fathers were not Christians, all were heavily influenced by a Judeo-Christian worldview which was prevalent at the time, and especially by Calvinist Christianity that was a strong influence from the time of the puritans in the 13 colonies.

These influences helped form an entirely new concept of government, a republic more pure and protective of and subject to the people than previous efforts, such as ancient Greece. The United States Constitution was written not to grant powers to the government, but instead to limit the government's powers to a specific and narrow range of areas. Each branch of the three in government is coequal and are in tension, thus protecting the people from any one branch being dominant and dictatorial.

The ninth and tenth amendments to the Constitution - the final two and most forgotten of the original Bill of Rights - are the most critical and overt statements of this philosophy:
9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
These amendments make the concept behind this document abundantly clear, as does the writings of the Federalist and especially Anti-Federalist papers and personal writings of men such as Thomas Jefferson and James Madison.

Such a philosophy was a radical departure from previous governments. In place of the previous, assumed system where government was considered omnipotent except where citizens could wrest power away from it, the US Constitution declared the citizens the power and the government having a small portion of this power in representation of the citizens. Most importantly, no branch of the government was superior to the constitution. Each branch is subject to and inferior to the fixed and absolute Constitution, which stands over and dictates to the branches.

The Executive branch has the power to enforce laws and wage war, but cannot do so outside the boundaries and clear dictates of the Constitution. It has no other power than what is given it in the document.

The Legislative branch has the power to ratify treaties, pass laws, and other sundry duties, but has no power of any kind to engage in any other activity except that specifically outlined it in the constitution.

The Judicial branch (supreme and federal courts) has the power to interpret laws, but no other power. It cannot change the constitution, it cannot create new law, it cannot enforce laws.

The constitution cannot be changed by any legal means except amendment. The law of the land cannot be properly altered by precedent (previous court decisions guiding later ones), foreign law, or judicial fiat.

These limitations are very strong and absolute, they were intended very specifically to limit and control government power. The men who wrote, argued, and signed the US Constitution did so with a clear memory of despotic monarchic power and crushing tyrrany beneath an unanswerable, distant ruler. They wanted no part of this, and what's more wanted the government to fear, obey, and be subject to the citizens.

The device that allowed and guaranteed this was the Constitution as it was written.

Over time, the US federal government has struggled over and over against these bounds, straining at their chains. The first link to snap was in the Supreme Court decision Marbury vs Madison in which the Supreme Court in effect ruled that it had the power and right to interpret the constitution. In no place does the constitution give such power to the Judicial Branch, and the founding fathers presumed it was the weakest - without power to enforce it's dictates and without money to encourage them.

This granted greater power to the Supreme Court, giving it effectively the final say in constitutional matters and violating the spirit and philosophy behind the document. By saying they had the power to interpret the constitution, the door was flung open for the Supreme Court to in effect amend the constitution by the vote of 5 former lawyers. The Supreme Court could decide something not stated in the constitution that they interpreted it to have meant, and by doing so add to the constitution new meaning that it may not have originally had or was intended to have by the men who wrote and worked on it.

Thomas Jefferson wrote and spoke on this decision and it's implications as well as the original intent of the constitution at the time:
"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches."

"The Judicial Branch must be independent of other branches of government, but not independent of the nation itself. It is rightly responsible to the people for irregular and censurable decisions, and judges should be appointed for limited terms with reappointments resulting from approved conduct."

"The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

"But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force."

"It is a misnomer to call a government republican in which a branch of the supreme power is independent of the nation."
Abraham Lincoln later was faced by a Supreme Court that he felt was overstepping it's constitutional boundaries and said:
"If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court... the people will have ceased to be their own rulers."
John Marshall, the longest-serving Supreme Court justice in US history (1801-1835) and chief justice is considered one of the leading and most influential thinkers on constitutional interpretation. He had this to say about the judiciary:
"The particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and the courts, as well as other departments, are bound by that instrument."
Other links along the way have broken, including a series of decisions in 1937 in which some of Franklin Delano Roosevelt's socialist spending ideas were challenged before the Supreme Court. The Supreme Court shot down several, such as US vs Butler, but many were passed, greatly expanding the definition and meaning of the General Welfare clause (section 8 article 1) of the US constitution:
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States
This clause then clearly enumerates various powers and areas of control the legislature is given. Previous to the Supreme Court decisions in the mid-late 30's it was understood that the General Welfare clause meant what was listed within it. After this, it was ruled by the Supreme Court to include things not detailed and added to it that were thought to be for the General Welfare of the citizens.

James Madison, made the meaning of this clause clear by a simple application of logic and his understanding of the constitution as one of its primary writers:
"If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions."
Thomas Jefferson expanded on this concept; explicitly stating that added powers were not constitutionally permissible:
"Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated."

Even Alexander Hamilton who is usually quoted as supporting this expanded, changed view of the General Welfare clause said:
"No objection ought to arise to this construction from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the General Welfare. A power to appropriate money with this latitude which is granted too in express terms would not carry a power to do any other thing, not authorised in the constitution, either expressly or by fair implication."
The distinction Madison brings up is key, especially understood in the light of the philosophy behind the constitution as pointed out above. Allowing congress to create laws on anything it considers is beneficial to the public is to change from a government granted specific limited powers by the people and no more to a government that has unlimited powers it executes over the people with a few limited exceptions.

The result of these sorts of decisions and this interpretation of the General Welfare clause is how the United States ended up with federal welfare programs such as Medicare and Social Security. None of this is authorized by the constitution as it is written, and thus the 10th amendment strictly prohibits spending money on these programs at the federal level.

The Supreme Court had gone from the weakest branch of government to it's most mighty. Instead of interpreting law, the Supreme Court is now the interpreter and modifier of the US Constitution. The Supreme Court has taken upon its self the ability to add to or modify the constitution without amendment process and without a vote of the people. Completely outside the influence of citizens, the courts are free to do whatever they wish with a lifetime appointment with almost no check or balance against their imperial authority.

This power was once controlled by the subjection of the courts to the constitution and the recognition of the other two branches of government that the courts were coequal and not in a superior position of power or legality. Presidents such as Jackson and Lincoln simply ignored the court decisions when they felt the court was in error or unconstitutional, demonstrating that, as Andrew Jackson put it "The Supreme Court has made its ruling, now lets see them enforce it!"

Congress is under no compulsion or requirement to bow to the will of the Supreme Court in appropriating money toward any end. If the Supreme Court determines a law is unconstitutional, then it is no longer valid, but congress does not have to follow up by gathering and spending monies to execute the court's decisions or will.

More recently, a different kind of judge has become recognized and known. This kind of judge has a radical interpretation of their job, considering not only that they should interpret the law but also have a duty and an obligation to change and add to the laws by their decisions. Judge Reinhard of the 9th Circuit Federal Court sets the standard for this kind of activist judge:
"How can you tell a judge is liberal? Liberal judges believe in a generous or expansive interpretation of the Bill of Rights. We believe that the meaning of the Constitution was not frozen in 1789; that, as society develops and evolves, its understanding of constitutional principles also grows. We believe that the Founding Fathers used broad general principles to describe our rights, terms such as "due process of law;" life, liberty and property;" "unreasonable search and seizure;"(sic) "freedom of speech," because they were determined not to enact a narrow, rigid code that would bind and limit all future generations. Many of the rights Americans cherish most are not listed in the constitution. For example the right to marry; the right to have children, as many or as few as one wants; even the right to travel."
It is for another essay to examine the meaning of the term "rights" and whether even one of these alleged rights actually qualifies for the term, but this justice embodies that sort of interpretation that calls the Constitution a "living document" by which it is meant "changes to fit society and the way people think and believe now."

The founding fathers and writers of the constitution did not hold this opinion. While they understood the need to interpret and understand the meaning of the constitution to apply to new or different settings, technologies, and advances, they believed that was to be done within the constitution, not adding to it. As Hamilton noted above, the concept was to interpret within the framework of the constitution, not to add to it or interpret from outside it.

The concept is one of principles used applied to situations rather than situations applied to the law. Applying principles to situations means taking what the constitution meant and what the writers say it was for and looking at new situations to see how to implement the law.

The alternative is looking at new situations and technologies and trying to find ways to fit them into the constitution. One takes the ideals and philosophy behind the writing of the constitution (government limited by specific boundaries, under the constitution), and the other takes ideals and concepts and applies them to the constitution (how can I do what I want here, how do we apply this new mood of the nation, where in the constitution can I find something that can be used to justify this novel thing).

Culture is not meant to shape the constitution, nor should it. Culture is meant to be ruled by and limited by the constitution. At its most extreme example, molding law and rules by the whim and current desires of the populace or culture could end up with a tyranny or even government mandated murder.

The Congress of the United States passes laws and enacts spending that regularly is outside the limits it is given by the Constitution, blithely ignoring their vow to uphold and protect the constitution and using their power to further work toward reelection, assistance of monetary donors, and to expand their personal power.

The Presidency has a responsibility to veto unconstitutional spending, enforce the constitutional laws that are passed - even immigration laws - and to protect the office from being encroached upon by congressional power and laws that violate the separation of powers. The President, by failing to veto laws that are in violation of the constitution, or by signing laws that do so is not doing his job either and is in the process personally violating his vow to uphold the constitution.

The federal government has grown grossly out of its rigidly specified boundaries and controlled limitations that the constitution provides. It has done so only by the will of the people, who either by not acting have allowed or by voting have encouraged the government to take these steps.

The United States Constitution is the oldest and most respected in the world. It is something every US citizen should know exhaustively because not only is it so important, wise, and central to our history and meaning as a nation, but it is short, easy to read, and to the point. No high school student should be allowed to graduate without a working knowledge of this document.

Each of us as a citizen of the United States has a responsibility to vote, think, act, and serve in office in light and honor of this document, what it means, and what it stands for. It is up to the people to deal with this by voting for men who will appoint more cautious, constitutionally-minded and better-read historians to the judicial branch, by voting for congressmen and presidents who will fulfill their sworn and sacred duty to uphold and protect the constitution.

*UPDATE: Edited quote attributed to Madison so that it properly is attributed to Jackson

Amendment I (part one)
Amendment I (part two)
Amendment II

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